The charges were dismissed after witnesses testified that Russell and a friend were the aggressors and that Allen, 24, was being beaten up when the fatal shot was fired.

The shooting occurred shortly after 2 a.m. immediately following a homecoming after-party for Hampton University alumni at the Magnuson Hotel on Omni Boulevard. Russell was fatally wounded in the chest. The event was not sponsored by the university.

The charges were dismissed following a three-hour probable cause hearing. The purpose of the hearing was for Newport News General District Judge Gary A. Mills to decide whether there was enough evidence to move the case up to a Newport News Circuit Court grand jury to review.

Three perspectives

Allen, Russell and Lavonte Battle crossed paths inside the party. Battle and Russell, who came together, were talking to two women. One of the women was Allen's girlfriend. Witnesses testified that Allen approached the group and pulled his girlfriend away, and Russell and Allen argued briefly. Battle testified that Russell felt disrespected.

Three separate accounts were given about what happened in the hotel parking lot when the fatal shot was fired.

Battle testified that he went outside to join the two women from inside the club in the parking lot. At some point, Allen and Russell walked up separately to join them. Battle testified that "Allen got defensive and started calling his girlfriend the b word." Battle said he told Allen that he should not disrespect his girlfriend and the three men began arguing for a second time that night. Battle said Allen left and returned a few minutes later with a gun in his right hand and started pointing the gun at Russell.

"I tried to go around the back of Allen to hit him or hit the gun out his hand … before I could get to him I believe the gun was shot," Battle testified.

Battle said Russell walked toward Allen and the three of them fell to the ground and began fighting.

"I was on top of him fighting him when I noticed my friend was on the ground pretty much shaking," testified Battle, who later realized he had been shot in the arm during the brawl.

Battle testified that he and Russell had at least five mixed drinks that night. A medical examiner testified Russell's blood alcohol level was 0.14, nearly twice the legal limit of 0.08.

Donique Wiggins, who came to the party with Allen, said Allen and his girlfriend were trying to leave when Russell and Battle started walking toward them in the parking lot. Wiggins, who owned a gun, said Allen grabbed it.

"He pulls out the firearm and said get back, get back," Wiggins said Allen told Russell and Battle. "They were approaching pretty rapidly. Matt went down, they went down, in between some cars. Shortly after, they fell to the ground and I heard two shots."

Party host John Eley III knew all three men. Eley testified that earlier that night Russell told him that he felt he had been disrespected by someone. When the party let out Eley said that he saw Allen waving a gun "back and forth."

Eley said Allen and his girlfriend started walking away. They made it four or five steps when "Battle approached Matt and hit him where the gun was at," Battle testified, saying the two men began to fight.

"After they started fighting Victor went over," Battle testified. "Victor came over trying to break it up and he started fighting with them. …I didn't see it blow for blow, but in the end Victor was on top of Matthew. … After the shot was fired they were still fighting. Then 5 or 6 seconds later he [Russell] collapsed and fell on top of Matthew."

All three men testified for the prosecution. The defense didn't call any witnesses during the hearing.

When police arrived, Allen was unconscious. His face was bruised and one of his eyes was swollen shut. In an interview with police after the shooting, Allen said he armed himself with a gun "after being assaulted, shooting two or three times toward the assailants, according to a criminal complaint.

The decision

"I can't certify these charges of second-degree murder and malicious wounding … whether this is manslaughter, involuntary or voluntary, or just self defense," Mills said.

He continued, saying "at most" this is a manslaughter case if prosecutors decide to file new charges in the future.

After the hearing, Deputy Commonwealth's Attorney Chad Perkins said he didn't know if new charges would be filed against Allen.

"I think Wiggins was very credible," Mills said. "Eley was very credible. Battle was not credible. I think he is just as responsible as this gentleman."

Outside the courtroom Allen hugged Wiggins. Allen declined to comment about the dismissal.

"I feel the judge was very fair and did the right thing," said Andrew Sacks, Allen's attorney. "The evidence did not support the charges."